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TREATY PRACTICES OF NEW ZEALAND

1. Definition of “treaty”

A treaty is an international document that is legally binding under international law. 
It represents serious international commitments between two or more countries or other international entities (such as the United Nations, the World Bank) and is governed by international law. Treaties can have various names, such as "Convention" (often for multilateral agreements), "Agreement" (most common, especially for bilateral ones), and "Protocol" (supplementary to the main treaty).

Unlike a treaty, an arrangement is an international document with a lower legal status, meaning it is not intended to be legally binding but instead creates important political commitments. Although not legally binding, the New Zealand Government still takes the commitments within arrangements seriously, and their drafting requires similar care to that of a treaty.


2. New Zealand's treaty-making process

The process of signing and implementing a treaty can be lengthy. Below are the key steps that apply to the conclusion of significant multilateral and bilateral treaties:

Step 1: Negotiation

New Zealand must have the authority to negotiate. Officials then participate in negotiations to finalize the text of the treaty.

Step 2: National Interest Analysis (NIA)

The lead agency prepares an NIA report, which outlines the pros and cons of New Zealand becoming a party to the treaty. The NIA must be approved by the Cabinet before presented to the House of Representatives.

Step 3: Signing

The Cabinet approves the final text and authorizes signing. At this stage, the treaty has been agreed upon but is not yet legally binding.

Step 4: Presentation

The Ministry of Foreign Affairs and Trade (MFAT) presents the treaty and the NIA to the House of Representatives. This step is mandatory for all "significant bilateral and multilateral treaties."

Step 5: Consideration

A Parliamentary select committee considers the treaty and the NIA. The committee has 15 days before reporting back to the House of Representatives.

Step 6: Domestic Implementation

If the obligations under the treaty cannot be fulfilled under existing law, new legislation is required. The New Zealand Government's practice is to enact implementation measures before ratification or accession to a treaty to ensure that treaty obligations are not breached.

Step 7: Ratification

The Parliament ratifies the treaty.
 
Step 8: Entry into Force

The treaty officially becomes legally binding on New Zealand.
After entering into force, the treaty must be registered with the United Nations Secretariat in accordance with Article 102 of the UN Charter.

3. Exceptions and Practices

  • Determining a "Significant Bilateral Treaty": The Minister of Foreign Affairs and Trade decides which bilateral treaties are "significant" to require the parliamentary review process. Criteria include: a major topic of public interest, a unique or significantly different treaty, a significant financial impact, a non-terminable or long-term effect, or if the Foreign Affairs, Defence and Trade Committee has expressed interest. If not considered "significant," the parliamentary review process may be waived.
  • Regulatory Impact Analysis (RIA) Report:
    • An RIA is required for proposals to conclude treaties that may lead to the need for amendments to domestic laws or regulations.
    • Significant multilateral and bilateral treaties must be submitted to Parliament for consideration. The submission to the House of Representatives must include a National Interest Analysis (NIA) report. If the treaty gives rise to binding legal obligations that may require a change in law, an Extended NIA will be prepared, which includes the RIA requirements.
    • Bilateral treaties not in the "significant" category do not need to be submitted to Parliament for consideration. If they could lead to legal consequences requiring changes to domestic law, a Regulatory Impact Analysis (RIA) report must be prepared as part of the Cabinet submission.
  • Domestic Consultation:
    • Consultation with the Māori people: The lead agency must determine early on whether consultation with the Māori people is necessary, especially for treaties affecting Māori rights or property (e.g., intellectual property, indigenous rights). MFAT provides a report to Māori organizations once every six months.
    • Inter-agency Consultation: The lead agency ensures consultation with other ministries and departments.
    • Consultation with the Minister of Foreign Affairs: Consultation with the Minister of Foreign Affairs is mandatory for all proposals related to international treaties.
  • Application to Tokelau, Cook Islands, and Niue:
    • Tokelau: A dependent territory of New Zealand. All treaty-making activities related to Tokelau are carried out by the New Zealand Government, in consultation with the Government of Tokelau.
    • Cook Islands and Niue: Are self-governing states in free association with New Zealand. Since the mid-1980s, they have often undertaken their own treaty-making. New Zealand's treaty actions do not apply to the Cook Islands or Niue unless explicitly stated on their behalf.
    • Amendment of Treaties: Any amendment to a treaty is considered a new treaty action and must comply with constitutional requirements and the same procedures as concluding a new treaty.

[source]: https://www.treaties.mfat.govt.nz/ https://www.mfat.govt.nz/assets/About-us-Corporate/Treaties-Model-instruments/ International-Treaty-Making-Guide-2021.pdf